2020-02-11 NE Water Sustainability Fund GrantSTATE OF NEBRASKA
DEPARTMENT OF NATURAL RESOURCES
NEBRASKA, WATER SUSTAINABILITY FUND
GRANT AWARD AGREEMENT
FOR APPLICATION NO. 5252
This Agreement is entered into by and between the Nebraska Department of Natural Resources
(Department) and the applicant organization, City of Blain, Nebraska (Sponsor), sometimes
hereinafter individually referred to as "Party," or collectively referred to as "Parties."
WHEREAS, pursuant to the Nebraska Water Sustainability Fund Grant Program (Fund), Neb. Rev.
Stat.. § 61-222 and § 2-1511(2), and Title 261 of the Nebraska Administrative Code (NAC Title
261), the Nebraska Natural Resources Commission (Commission) and the Department are charged
with the responsibilities of establishing and administering a grant process for the purpose of
attaining the goals set out in Neb. Rev. Stat, § 2-1506; and
WHEREAS, the Sponsor submitted application number 5252 (Application) requesting a grant
under the Fund for a project titled "City of Blair Water Supply Resiliency Project" (Project). A
copy of the Application is located at nre.nebraska.gov and is hereby incorporated by reference into
this Agreement; and
WHEREAS, the Commission has adopted rules for administration of the Fund under NAC Title
261, which are hereby incorporated into this Agreement by reference; and
WHEREAS, the Commission approved the Project and awarded the Sponsor a grant of
$6,006,000.00 to carry out the Project.
NOW, THEREFORE, in consideration of the mutual promises and understandings contained
herein, the receipt and sufficiency of which is hereby acknowledged, the Department and Sponsor
hereby mutually agree as follows:
1. Exclusive State Funding.
Resources from the Fund will not replace any local share required by other state funds
expended by the Sponsor in carrying out the Project.
2, Term.
This Agreement shall be for a term commencing on December 18, 2019 and continuing
thereafter until Project close out, unless all eligible reimbursements are made prior to that
time thus terminating the Agreement as completed, or unless the Agreement is:
A. Terminated with cause in the event either Party defaults on any of its material
obligations or representations under this Agreement. The non -defaulting panty shall
notify the other Party in writing, specifying in detail the nature and extent of such
breach, If within thirty (30) calendar days after written notice of such default, the
defaulting Party fails to remedy the default, this Agreement will terminate.
B. Terminated by the Department, in whole or in part, in the event funding is no longer
available. If funds are revolted by the Legislature, the Department may terminate
any portions of the Agreement for which funds have become unavailable. The
Department will give the Sponsor notice of such revocation as soon as possible.
The Sponsor shall be entitled to receive reimbursements subject to the availability
of such funds for any authorized work that has been satisfactorily completed as of
the termination date.
C. Amended by written amendment signed by both parties.
3. Scope of Agreement.
A. Sponsor shall complete through its own efforts, or through contracting with a
capable party, the obligations for completing the Project as set forth in the
Application.
B. Any changes to the scope of the Project shall be considered according to procedures
set out in NAC Title 261.
4. Agreement Managers,
A. The Department's Agreement Manager is Kent Zimmerman, His telephone number
is (402) 471-0575. His address is; Nebraska Department of Natural Resources, P.O.
Box 94676, Lincoln, NE 68509-4676. His email address is
trent zimmerman(a�nebraska.gov.
B. The Sponsor shall designate a person as the Sponsor's Agreement Manager to direct
or report on the Sponsor's work under the Project and coordinate with the
Department. The Sponsor's Agreement Manager is
Al Iand its ter address is
her email address is 2161 r- VN, r d
C. Communications under this Agreement shall be through the respective Agreement
Managers.
D. The Sponsor may change its Agreement Manager only after notifying the
Department in writing,
S. Reimbursement.
A, From the annual appropriations by the Legislature to the Fund and set aside by the
Commission, but subject to subsequent quarterly limitations that may be imposed
by the Department of Administrative Service's Budget Office, the Department
agrees to reimburse the Sponsor for eligible costs as defined in NAC Title 261 that
are incurred after approval by the Commission in the application process and during
the term of this Agreement in performance of activities necessary for the Project as
described in the Application.
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B. Total reimbursement amount and payments for this Project shall not exceed
$6,006,000.00. Reimbursements shall be limited to amounts approved by the
Department as: 1) having met the definition of eligible costs under NAC Title 261;
and 2) that include adequate documentation,
C. Reimbursement shall be made for expenses electronically submitted by the Sponsor
to the Department's Agreement Manager. All submissions shall include a detailed,
itemized summary of each reimbursable expenditure and include all appropriate
support documentation.
(1) Reimbursement requests for expenditures acquiring interests in real
property must include, for each legal interest acquired:
(a) Title insurance policy showing title in the seller;
(b) Closing statement signed by both the buyer and seller;
(c) Copy of recorded instrument (deed/casement) from the seller to the
Sponsor for the specified real estate;
(d) Copy of certified check or wire transfer payable to the seller for the
indicated transaction; and
(e) Brief explanation of the relationship of the property interest to the
Project.
(t) If an irrigation water use is to be leased, relinquished, retired or
purchased, then prior to the Sponsor entering into an agreement with
the real property owner, the Sponsor shall consult with the
Department for the purpose of determining if (a) the surface water
right is valid and not subject to some known restriction or limitation
(such as CREP) or (b) the ground water use is subject to some known
restriction or Iimitation (such as CREP).
D. Reimbursement payments shall be made by the Department no more often than
monthly based upon the reimbursement request submissions. The final billing for
all expenses under this Agreement must be clearly marked "final billing," Upon
payment of the final billing, any unused Project funds will be transferred into the
unreserved balance of the Water Sustainability Fund pursuant to Neb. Rev. Stat. §
2-1507(4),
E. Expense records shall be subject to inspection by the Department and any other
agency of the State of Nebraska with responsibility for monitoring progress or
auditing records pursuant to this Agreement. The Department shall have the right
to audit billings both before and after payment, and payment under this Agreement
shall not foreclose the right of the Department to recover excessive or improper
payments.
F. Sponsor, upon payment of the amounts due under this Agreement, releases the
Department, its officers and employees, and the State of Nebraska from all
liabilities, claims, and obligations whatsoever arising from or under this
Agreement.
6, Inspection During and After Construction.
The Director of the Department or his or her designated representative(s) shall have the
privilege of inspecting the construction of the Project at any time in order to ensure that
plans and specifications are being followed, that the works are being constructed in
accordance with sound engineering and technical principles and practices, and that the
Project continues to provide benefits as proposed in the Application, Such inspection shall
never subject the State of Nebraska to any action for damages,
7, ro'eet Completion Ex eeted,
Sponsor shall provide and maintain adequate support, including the necessary professional
or technical personnel and local funding identified in the Application to permit timely
completion of the Project.
8. Independent Contractor.
A. The relationship of the Department and Sponsor established by this Agreement is
that of independent contractors. Nothing in this Agreement shall be construed in
any manner as creating or establishing any agency or employment relationship
between the Department and the Sponsor, or contractors of Sponsor.
B. All claims on behalf of any person arising out of employment or alleged
employment (including but not limited to claims of discrimination against the
Sponsor, its officers, or its agents) shall in no way be the responsibility of the
Department or the State. The Sponsor will hold the Department and the State
harmless from any and all such claims. Sponsor personnel and all other persons
acting for the Sponsor are not entitled to any reimbursements, rights, or benefits
from the Department or the State including but not limited to tenure rights, medical
and hospital care, sick and vacation leave, severance pay, or retirement benefits.
9. Notices.
All notices, requests, demands, and other communications hereunder shall be in writing
and delivered or mailed, with postage prepaid, to the Agreement Managers at the addresses
set forth in Paragraph 4 of this Agreement.
10. Binding,
This Agreement shall inure to and bind the successors, assigns, and representatives of the
Parties, providing, however, this Agreement may not be assigned by either Party without
the prior written consent of the other. Neither the Department nor the Sponsor intends
anyone to be a third -party beneficiary of this Agreement.
11. Entire Agreement/Severability/Waiver.
This Agreement is the entire agreement between the parties hereto; no representations,
inducements, promises, or agreements, oral or otherwise, between the Parties not embodied
herein shall be of any force or effect. In the event any provision of this Agreement shall be
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held invalid and unenforceable, the remaining provisions shall be valid and binding upon
the Parties. One or more waivers by either Party of any provision, term, condition, or
covenant shall not be construed by the other Party as a waiver of a subsequent breach of
the same by the other Party.
12. Amendment of ,A.gmtrient.
This Agreement may be amended only by a written instrument signed by the Department
and the Sponsor.
13. Attachments.
If there are any terms and conditions contained in any Attachment hereto that are
inconsistent with the terms and conditions contained in this Agreement, the terms and
conditions of the Attachments shall be construed to conform to the terms of this Agreement
unless specifically expressed in a writing signed by the Parties.
14. Prevailing Law.
This Agreement is governed by the laws of the State of Nebraska including the State
Contract Claims Act, Neb. Rev. Stat. §§ 81-8,302 through 818,306.
15. Indemnification.
Neither the Department nor the State of Nebraska shall be liable for any damage or
compensation payable with respect to or in consequence of any accident or injury to any
workman or other person in the employment of the Sponsor that would be covered by
Worker's Compensation insurance, liability insurance, or otherwise, except all accident
or injury resulting from an intentional act of the Department. The Sponsor shall
indemnify, defend, and hold harmless the Department and the State of Nebraska against
all such damages, compensation, and against all claims, proceedings, costs, charges,
attorney's fees, and expenses whatsoever in respect thereof or in relation thereof. The
Sponsor shall indemnify the Department and the State of Nebraska for any damages,
claims, or liability to the extent caused by the Sponsor's negligent acts, errors, or
omissions arising out of the performance of professional services under this Agreement.
The Sponsor expressly waives all statutory or common law defenses, including but not
limited to those under Workers' Compensation, Contribution, Comparative Fault or similar
statutes or legal principles to the extent said defenses are inconsistent with or would defeat
the purpose of the indemnification under this section.
16. Drug Free Work Place Policy.
Sponsor certifies that it maintains a drug free worts place environment to ensure workers
safety and workplace integrity. Sponsor agrees to provide a copy of its drug free workplace
policy at any time upon request by the Department.
17, Technology Access.
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Sponsor agrees to ensure compliance with Nebraska Access Technology Standards. See
website at; littp•/hiitc nebraslca,gov/standards/2-2014Lcif, In the event that the State's
technology access standards change duringthe term of the Agreement, the Department may
create an amendment to the Agreement to ensure that it comply with the changed standard.
If the amendment causes any changes in costs to the Sponsor, the costs shall be mutually
agreed on by both Parties.
18, Fair Employment Practices,
Sponsor agrees to ensure compliance with the Nebraska Fair Employment Practice Act,
which prohibits contractors of the State of Nebraska, and their subcontractors, from
discriminating against any employee or applicant for employment, with respect to hire,
tenure, terms, conditions, or privileges of employment because of race, color, religion, sex,
disability, or national origin, Neb. Rev. Stat. §§ 48-1101 through 48-1125.
19. Worker Eli i� bility Status Requirements,
The Sponsor is required and hereby agrees to use a federal immigration verification system
to determine the work eligibility status of any new employees paid with proceeds of this
Agreement that are physically performing services within the State of Nebraska. The
Sponsor understands and agrees that lawful presence in the United States is required for
such employment and the Sponsor may be disqualified or the Agreement terminated if
such lawful presence cannot be verified as required by Neb. Rev. Stat. § 4-108. A federal
immigration verification system means the electronic verification of the work
authorization program authorized by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, 8 U.S.C. 1324a, known as the E -Verify Program, or an
equivalent federal program designated by the United States Department of Homeland
Security or other federal agency authorized to verify the work eligibility status of a newly
hired employee.
20. Compliance with All Laws and Ordinances.
Sponsor covenants that it does and shall at all times pertinent to this Agreement comply
with all state, federal, and local laws, ordinances and regulations including but not limited
to corporate registration, payment of taxes and registration required for payment of taxes,
and acquisition and payment for any permits, licenses, and approvals necessary for
completion of the Project.
21. Audit Requirements.
All of the Sponsor's books, records, and documents relating to work performed or monies
received under the Agreement shall be subject to audit at any reasonable time after
reasonable notice by the Department, The Sponsor shall maintain all of these records for a
period of five (5) years from the date of final payment, or until all issues related to an audit,
litigation, or other action are resolved, whichever is longer. All records shall be maintained
in accordance with generally accepted accounting principles.
22, Audit by Office of State Auditor,
on
Any public or private non-profit entity or political subdivision of the State serving as the
recipient or.sub-recipient of funds under this Agreement, except for an individual person,
is subject to audit by the Office of State Auditor and must comply with requests for any
information or records within three (3) business days after an the actual receipt of the
request pursuant to Neb, Rev, Stat. § 84-304 (4)(a) and § 50-1213 (2),
23. Annual Report,
The Sponsor will annually submit to the Department's Agreement Manager, electronic
reports on or before April 1St of each year up to and including the year final payment is
made to the Project, Annual reports shall specify the reporting period and contain
information detailing Project progress and the anticipated progress for the next year; and
shall include some analysis of whether the Project is attaining its purposes as identified in
the Application, After Project completion/close out, annual reports are no longer required
unless real estate or other real property acquired or constructed as part of this Project is
rented or otherwise generating revenue exclusive of park entry fees, city fees, or revenue
not resulting from the Project.
24, Final Report
The Sponsor will electronically submit to the Department's Agreement Manager, a final
report summarizing the results of the Project and discussing whether or not the benefits
described in the Application were achieved or not.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date last stated below,
Sponsor
By: . 6� �'
C+�t 64 61urr
Nebraska Department of Natural Resources
By: Gordon W, Fassett, PE, Director
Department of Natural Resources
301 Centennial Mall South
P.O. Box 94676
Lincoln, NE 68509-4676
APP___ R®���
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This Agreement signed in duplicate,